Volume 69 — Illinois Reports

Writ op Error to the Circuit Court of Bureau county; the Hon. Edwin S. Lelakd, Judge, presiding. This was an information filed by the State’s Attorney of Bureau county, on behalf of the People, against Michael Higgins, for selling intoxicating liquor .without license. The opinion states the material facts.

Joseph E. Gary, Judge, presiding. This was a bill in chancery, filed by John A. Mellendy and Ho ah Green, against C. Dean Austin and Allan McClure, impleaded with Augustus Johnson. The opinion of the court contains a sufficient statement of the case and its leading facts.

Josiah McRoberts, Judge, presiding. This was a suit, brought by Martin C. Bissell against Delos B. Curran, upon a promissory note, given by the defendant to one Bevans, and assigned by Bevans to the plaintiff, after maturity. The opinion states the material facts.

<p>Appeal from the Superior Court of Cook county; the Hon. William A. Porter, Judge, presiding.</p> <p>This was assumpsit, brought by appellee against appellant, to the October term, 1872, of the Superior Court of Cook county, based upon a policy of insurance by the latter to the former. Summons was issued September 25, 1872, to the sheriff of Cook county. The return of the sheriff shows service on the president of appellant September 26, 1872, by reading and delivering a copy thereof to him on that day, but does not say that he left a copy with the president. The record shows, however, that by leave of the court the return was amended, and the amended return is set out in full, showing the reading of the writ to the president, and the delivering and leaving with him a copy thereof, on the 26th day of September, 1872.</p> <p>October 25, 1872, a declaration was filed, which was ten days before the first day of the November term. November 7, 1872, the defendant’s default for want of appearance was entered, and on the 19th of same month plaintiff’s damages were assessed by the court at §5218.67, and judgment rendered for that amount, with costs. On the 27th of same month and at the same term, the defendant filed its motion, supported by affidavits, to set aside the default and judgment in the cause. No action was taken by the court upon the motion, except to continue it to the next term. On the 17th of January, 1873, at that same term, the motion of defendant to set aside the default and judgment taken and rendered at the previous November term of said court, was heard and overruled by the court, whereupon defendant prayed an appeal to this court, which was allowed upon condition that defendant file an appeal bond and bill of exceptions within twenty days, which was done. The bill of exceptions sets forth simply the motion to set aside the default and judgment, as above set forth, the affidavit in support thereof, the decision of the court overruling such motion, and defendant’s exception thereto.</p>

<p>1. Church property—division in ease of a schism. Where property was purchased by a religions society, incorporated under the laws of this State, and paid for by voluntary contributions of the members, and it was agreed at the time, between all the members, that the property should be held by the trustees for the common use and benefit of the members, and in case of a schism or division, for any cause, there should be a fair division of the same in proportion to their members, and a similar provision was adopted in their constitution, it was held, that by the term “schism” was meant a division or separation of the members of the body occasioned by a diversity of opinion on religious subjects, and that a difficulty growing out of an illegal election of trustees by a majority, and their excluding the minority from the use of the church, was not a schism to justify a court in decreeing a division of the property.</p> <p>3. Same—individual members can not maintain bill for division. In such a case, there must be a division or separation of the church into two religious bodies, and there must be a separate organization of a part of the original church in order to claim a partition of the church property. The partition must be applied for, not by members of the congregation as individuals, but by an organized religious body for purposes of religious worship, and the division sought must not be to divert the property from the uses to which it is devoted.</p> <p>3. Churches—remedy for illegal election of trustees. Where the majority of a church, pretending, contrary to the fact, that a portion of the trustees elected had resigned and refused to act, proceed to elect others in their place, without notice to the minority of the congregation, and such others wrongfully assume to act, the law furnishes an appropriate remedy against them by quo warranto, or by bill in equity to restrain their wrongful acts.</p> <p>4. Same—equity will enforce trusts under which property is held. Church property vested in the trustees of a religious body is held under a trust, and a court will enforce the trust and hold the trust property to the uses for which it was originally given, but it will not lend its aid to divert the property from the original uses and purposes to which it was devoted.</p>

Lambert Tree, Judge, presiding. This was an action of replevin, brought by Miller C. Baldwin, H. Pomeroy Baldwin, and Albert A. Alexander, partners, etc., against Timothy M. Bradley, sheriff of Cook county, for the recovery of 42 barrels of whisky. The coroner returned that he had taken and delivered to the plaintiff 20 barrels of the whisky, giving their brands, and had not found the balance. A count in trover was inserted in the declaration as to the 22 barrels not found.

E. S. Williams, Judge, presiding. This was a bill in equity, by the appellee against the appellant, for an account, etc. It appears that the complainant was the owner of a debt of $5860 secured by a mortgage on an undivided half of certain real estate in the city of Chicago, the mortgage being defectively acknowledged, and gave the defendant, an attorney at law, a power in writing to prosecute the claim and collect the debt by foreclosure, in which he promised to allow the…

Joseph E. Gaey, Judge, presiding. This was a bill in chancery, exhibited by Ella Lyndon, by her next friend, against Thomas Lyndon, to have a marriage declared void. The opinion of the court states the substance of the material facts.

Henry Booth, Judge, presiding. This was an application, by Lizzie M. Chase, for a writ of mandamus against Calvin De Wolf, to compel him to issue an execution for the collection of certain costs in a judgment recovered before him by the petitioner. The opinion of the court states the material facts of the case.

<p>Appeal from the Circuit Court of Peoria county.</p> <p>-This was an action of debt, brought by Matthew Stanton for the use of Henry W. McClállen, against the Illinois Mutual Life Insurance Company, Boswell Bills and David McKinney, upon an appeal bond. The opinion of the court presents a sufficient statement of the facts. Bills and McKinney appealed from the judgment below.</p>

<p>'Writ op Error to the Criminal Court of Cook county; the Hon. William A. Porter, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This was an action brought by the appellants, wholesale jewelers in the city of Chicago, to recover from appellee the value of a box of merchandise which was delivered to the defendant at New York City for transportation to the plaintiffs. A jury having been waived in the court below, the cause was submitted to the court for trial, and judgment rendered for the plaintiffs for $50, from which judgment they appealed.

Weit of Error to the Circuit Court of Warren county; the Hon. Charles B. Lawrence, Judge, presiding. This was a bill in chancery, by John B. Black, administrator of the estate of Harvey Black, deceased, against Wilson Lusk, to foreclose three mortgages upon a lot in the city of Monmouth. The opinion of the court states the facts.

<p>Writ of Error to the Circuit Court of McHenry county; the Hon. Theodore D. Murphy, Judge, presiding.</p>

Writ of Error to the Criminal Court of Cook county; the Hon. William W. Farwell, Judge, presiding. This was a proceeding by information, filed by the State’s Attorney, on behalf of the people, against Ira Y. Munn and George L. Scott, for a violation of the 2d, 3d, 4th and 5th sections of what is commonly called “the Warehouse Law,” approved April 25, 1871.

Lambert Tree, Judge, presiding. This was an action on the case, brought by Isabella Knutson, administratrix of the estate of Severt Knutson, deceased, against the appellant, under the statute, to recover damages for causing the death of the intestate through negligence. The leading and essential facts of the case are stated in the opinion of the court.

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. *</p> <p>This was an action of ejectment, brought by Mathias Benner, as guardian of Matthew and Nicholas Schent, against William A. Muller. The court below found for the plaintiff, and the defendant appealed.</p>

<p>1. Wabkant—issued in Uanh, a nullity. Where a magistrate signs warrants in blank, and delivers the same to a police officer to be filled up with the names of persons to be arrested, as occasion may require, and the police officer fills up one of them for the arrest of an individual, without any charge under oath being first made, the warrant will be a nullity, as not issuing in the ordinary course of justice from a court or magistrate.</p> <p>2. Homicide—when manslaughter, where the hilling takes place in resisting an arrest. It is a general rule that, when persons have authority to arrest or imprison, and while using the proper means for that purpose, are resisted iu so doing and killed, it will be murder in all who take part in sueli resistance. But if the process be defective in the form of it, as, if there be a mistake in the name of the person on whom it is to be executed, or if the name of such person, or of the officer, he inserted without authority, or after the issuing of the process, or if the officer exceed his authority, the killing of the officer in such a case, by the person sought to he arrested, will not he murder, but manslaughter only.</p> <p>3. Three things are to be attended to in matters of this kind,—the legality of the deceased’s authority, the legality of the manner in which he executed it, and the defendant’s knowledge of that authority; for if an officer be killed in attempting to execute a writ or warrant invalid on the face of it, or if issued with a blank in it, and the blank is afterwards filled up by one having no authoritj-, or if issued with an insufficient description, or against a wrong person, or out of the district in which alone it could lawfully be executed, or if a private person interfere and act in a case where he has no authority by law to do so, or if the defendant have no knowledge of the officer’s business, or of the intention with which a private person interferes, and the officer or private person he resisted and killed, the killing will be manslaughter only.</p> <p>4. Same—evidence as to the legality of process material. Where a defendant. on an attempt to arrest him under a void warrant for an offense not committed in view of the officer holding the process, kills an assistant of the officer to prevent being arrested, the defendant on a trial for murder has the right to show in evidence the fact of the invalidity of the warrant, to enable the jury to determine whether the killing is murder or manslaughter only. If the process is shown-to be void, this will reduce the homicide to manslaughter, unless the proof shows express malice towards the deceased.</p>

W. W. Heaton, Judge, presiding. On the 28th .day of ¡November, 1855, Jason Clapp and Edwin Clapp, being seized each of the undivided half of certain lands in Lee county, in this State, and said Edwin holding title to a certain other parcel of land in said county, the said Jason executed a deed to one Buggies W. Clapp, conveying his said undivided interest, which deed ivas recorded in the recorder’s office in said county ; and on the same day said Edwin and his wife also…

Lambert Tree, Judge, presiding. This was a claim filed by the appellee, against the estate of Charles Carroll, deceased, for a balance claimed to be due the appellee on account for services. The opinion of the court states the material points and facts.

<p>Appeal from the Circuit Court of Putnam county; the Hon. Samuel L. Richmond, Judge, presiding. '</p> <p>This was an application by Robert Davis for a rule upon Jefferson Durley, sheriff of Putnam county, to compel him to execute deeds upon two certificates of purchase. The opinion of the court states the facts.</p>

<p>Writ of Error to the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p>

Josiah McRoberts, Judge, presiding. This was an action of ejectment, by Seth W. Hardin, originally against Peter Rickey, the tenant in possession, for the recovery of the south-east quarter section 19, township 33 north, range 10 east of the third principal meridian. Under leave of court the name of Samuel M. W. Gouveneur was substituted as the defendant. A trial was had by the court without a jury, who found the defendant not guilty, and rendered judgment accordingly.

Erasttts S. Williams, Judge, presiding. This was a bill in chancery, by Addison Goodell, Sellick B. Warner and Erastus P. Marsh against Hiels P. Lassen, for an injunction. The court below sustained a demurrer to, and dismissed the bill, and assessed defendant’s damages at $75. The complainants appealed.

<p>1. Hearsay evidence—to prove indebtedness and insolvency. On the trial of one for perjury, on his examination touching his sufficiency as bail in testifying that he was worth thirty-five or forty thousand dollars, over and above all just debts and liabilities, the court permitted a witness for the prosecution to give mere hearsay evidence in respect to large amounts of supposed indebtedness against the accused; that he was insolvent, and that there was an incumbrance upon a lot of bay owned by him, which he had testified was unincumbered: Held, that the admission of this testimony was erroneous.</p> <p>3. Evidence—admission of improper, when a ground of reversal. Where the court can see, from the whole case, that the admission of incompetent evidence could not have prejudiced the party against whom it was given, the error may be disregarded; hut if it was likely to have worked prejudicially to him, it can not be disregarded.</p> <p>8. Perjury—indictment must show the materiality of the matter sworn to. It is a well settled rule that it must appear on the face of the facts set forth in the indictment, that the matter sworn to and upon which the perjury is assigned, was material, or there must be an express averment to that effect. The materiality of the matter sworn to must depend upon the state of the cause and the nature of the issue in question.</p> <p>4. Same—materiality of testimony as to party's ability as bail. On the examination of a party as to his qualification to become bail for a part}-, under indictment, in the sum of §3,000, the material point of inquiry is, not whether such person is worth $40,000, but whether he is fully able to discharge the obligation he proposes to assume. If that sum, with interest and costs, can readily be made out of his property, it is wholly immaterial whether he is worth ten times that amount, and if his testimony in the latter respect is false, perjury can not be assigned upon it.</p> <p>5. So, if such party, on his examination as to his sufiiciency for bail, stated that he owned 400 tons of hay, which proved to be true, and that it was situated in a certain village and was worth §8 per ton, it is not material if the hay was not situated in the village, but just outside of it, and, therefore, he can not be convicted of perjury, if he in fact did own the hay, and it was worth about what he testified to, its precise location not being material.</p> <p>6. Same—effect of the false testimony is immaterial. It is the act of false swearing, in respect to a matter material to the point of inquiry, which constitutes the crime of perjury, and not the injury which it may have done to individuals, or the degree of credit which was given to the testimony. The fact that the testimony, alleged to be false, caused the court to accept the party as bail, will not supply or constitute an equivalent for a want of materiality in the testimony charged to be false.</p> <p>7. Witness—credibility of, instruction respecting. On the trial of one for perjury, the court instructed the jury, “that if they believe from the evidence that any of the witnesses, who have testified for the defense, have sworn falsely on any material fact in issue, then they have the right to disregard their testimony, unless corroborated by other credible evidence in the case:” Held, that the instruction was clearly wrong, it omitting the essential element that the witnesses had wilfully and knowingly sworn falsely.</p>

Hekry Booth, Judge, presiding. This was an action of indebitatus assumpsit, brought by Robert Moir & Co., the appellees, in the circuit court of Cook county, against Phillips & Carmichael, the appellants, to recover for money had and received from one Shufeldt, for 100 barrels of high wines sold to the latter, and claimed to have belonged to appellees.

John G. Rogers, Judge, presiding. This was an action of assumpsit, by Solomon Rothschild and Julius Stern, partners, against the Michigan Central Railroad Company, as carriers, to recover the value of a lot of cigars. The opinion states the facts of the case.

<p>1. Divorce—alimony and solicitor's fees pendente lite. During the penclenoy of a suit for divorce, the court may rightfully allow the wife alimony pendente lite on a proper showing, where she has no means, and also a reasonable sum for her solicitor’s fees, and money to enable her to develop her cause of action and bring it to a speedy trial.</p> <p>2. Same—solicitor's fees after the suit is terminated adversely to wife. After the final hearing of a suit for divorce brought by the wife, upon her bill and cross-bill of the husband, in which the wife is defeated, and her bill dismissed, and a divorce granted to the husband, it is error for the court to require the husband to pay the wife’s solicitor’s fees.</p>

<p>1. Instruction—should not place right of recovery on grounds not involved in the pleadings. Where the gist of an action was negligence in the servants of a street railway, whereby the plaintiff was carelessly run over and injured, it was held error to modify an instruction asked by the defendant, submitting the question of negligence fairly to the jury, by submitting other matters of inducement merely, and not of the substance of the charge, and which, if true, would make a different cause of action, and especially where there was no proof of such other matter.</p> <p>2. Negligence—not stopping street car. Where a passenger falls off a street car when in full motion, in front of the wheels, and the servants in charge of the same know that he is off the car, and holding on to the iron rail to save himself from being run over, it is culpable negligence if they do not stop the car, and thereby save him from injury.</p> <p>3. Excessive damages—personal injury. Where a city railway company was sued for damages sustained through the negligence of its servants, and it was alleged that the plaintiff was pushed off the end of the car in front of the wheels, while the car was in rapid motion, and that he caught to the iron railing and held on for a time sufficient to have stopped the car after those in charge knew of his perilous position, but they neglected to stop the same, and that his hold finally gave way, and the wheels run over his arm, it was held, that if the facts had justified the finding of the company guilty, §3000 damages were not excessive.</p>

Edwin S. Leland, Judge, presiding. This was an action on the case, brought by Samuel Benton against the appellant, to recover damages sustained from a collision with appellant’s train of cars, at a highway crossing. The facts of the case are stated in the opinion.

Writ of Error to the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding. This was an action of assumpsit, brought by Abner B. Page against James Tucker, upon an award of arbitrators. The proof of the submission and its terms was by parol evidence, there being no written submission.

<p>1. Contract—by what law governed. A conveyance on contract for the sale of land, situate in this State, is governed by the laws of this State, and not by those of the State where the contract is made.</p> <p>2. Powers—strict construction applied to agent's authority to sell land required by Statute of Frauds. The written authority of an agent to sell lands of his principal, required by the Statute of Frauds, must receive the same strict interpretation as ordinary written powers, such as letters • of attorney or letters of instruction, in which the authority is never extended beyond that which is given in terms, or is absolutely necessary for carrying into effect that which is expressly given.</p> <p>3: Same—construed with reference to surrounding circumstances. Where letters written by the owner of land are relied on as conferring an authority to sell the same, they will he construed with reference to the surrounding facts and circumstances, in determining whether they were, in fact, intended to authorize the party addressed to make a sale.</p> <p>4. Sale—by one claiming to be agent. Where a real estate agent of Chicago called upon the owner of lots, situate in that city, to know if they were for sale, and the owner informed him they were, and fixed his lowest price thereon, but requested information as to their real value, and for the purpose of learning such fact wrote to the agent, giving their numbers, and the latter, instead of giving the desired information, sent an offer for their purchase, which was declined, the owner replying that he adhered to the price first named by him, and the agent, on receipt of this, contracted, in writing, for the sale of the lots at the price named, which provided that if the owner should not ratify the same as to the incumbrances to be taken to secure the deferred payments, the purchaser should have the right to rescind the contract, and a copy of the contract was sent to the owner for his ratification, and the owner, on receipt thereof, immediately returned the same, with a letter stating that he had previously sold the lots, and expressing regret that the offer had not come sooner: Held, on bill by the purchaser for specific performance, that the writing, given by the agent, under the circumstances, never became a complete and binding contract upon the owner.</p> <p>5. In such case, even if the agent had written authority to sell the lots, but did not choose to exercise it without the personal approval of his principal, and sent the written contract to him to be ratified, this would leave the sale incomplete; and the agent, after notice from his principal that he had sold the property to another, would have no power to complete the same.</p> <p>6. Agbkcy—revocation by implication of law. Where the principal disposes of the subject matter of the agency, this, by implication of law, will operate as a revocation of the power of his agent to sell the same.</p>

<p>1. Private corporation—right to vote at elections by proxy. Where the charter of a private benevolent society authorized the society to elect its “directors or managers at such time and place, in such manner as may be specified in its by-laws,” and gave power to make by-laws not inconsistent with the constitution and laws of this State, or of the United States: Held, that a b3'-law authorizing its members to vote at all elections, etc, either in person or by proxy, was valid, and not inconsistent with the constitution and laws of the State.</p> <p>2. Same—objections to election of officers confined to the same made at the election. Where, at an election of directors of an incorporated benevolent societ3% the onty objection made was to the right to vote by proxy, it was held, on quo warranto against the directors elected, in the absence of proof that the persons executing the proxies were members of the societ3r, or that the proxies were properly executed, that it would be presumed that the proxies were regular and proper.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. Chables H. Wood, Judge, presiding.</p> <p>This was an action on the case, by Samuel Umphenour against the Chicago and Alton Eailroad Company, to recover damages for the killing of plaintiff’s stock, which had got upon the defendant’s track through the insufficient condition of its fence. The plaintiff recovered and the defendant appealed.</p>

<p>1. Forfeiture of contract—vendor must first offer to perform if all the payments we due. Where time was made of the essence of a contract for the sale of real estate, and it was provided that the vendor might declare a forfeiture for default in making payments when due, and the vendor never exercised his right to declare a forfeiture in his lifetime, though the payments had all matured, and after his death his heirs declared the contract forfeited for non-payment, it not appearing that they were prepared to make the conveyance to the vendee, it was held, that as the payment of the purchase money and the making of the conveyance were concurrent acts, the heirs of the vendor could not legally declare the forfeiture without showing that they offered to convey the land, or that they were ready and able to convey as required by the contract.</p> <p>3. Where the payment of the purchase money and the making of a conveyance are concurrent acts, the vendor, or his heirs after his death, have no power to declare a forfeiture of a contract of sale of land, unless they at the time are ready and have the ability to convey according to its terms.</p> <p>3. Same—how readiness to perform should he shown. Where the vendor of land is dead, and the last installment of the purchase money is due, under a contract making time of the essence of the contract, and a failure to pay at the time when due ground of forfeiture, a deed should be executed by the heirs and widow of the vendor and tendered to the purchaser, and payment demanded, and on refusal to pay, the heirs may declare a forfeiture.</p> <p>4. Specific performance—laches. Although the purchaser of land may be chargeable with laches in performing on his part by making payment, } et if his laches is waived by the vendor in his lifetime, and, on bill for specific performance against his heirs, they do not set up and insist on his laches in defense, hut rely upon their right to declare a forfeiture under the terms of the contract, which they were not in a position to enforce, a specific performance of the contract ma;r be had.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edwin S. L eland, Judge, presiding.</p>

<p>Appeal from the Court of Common Pleas of the city of Aurora; the Hon. Richard G. Montony, Judge, presiding.</p>

<p>1. Married woman—on what contracts is her separate estate liable. To render the separate estate of a married woman liable in this State, the debt must have been contracted by her in reference to it, or for her own benefit on the credit of her separate property, or by some appropriate instrument executed by her with a view to make the debt a specific charge upon it. A general engagement to pay a debt, contracted by a single bill or note, having no reference to her separate property, will create no such charge upon it as can be enforced in a court of equitj'-.</p> <p>2. Where the husband executed his promissory note to his creditor, and his wife indorsed the same, in payment of his individual indebtedness, and it was silent as to the separate estate of the wife, or of any intention to make its payment a charge upon such separate estate, it-was held, that it could not be construed into a contract to pay it out of her estate, and that it could not be enforced against her estate in a court of equity.</p> <p>3. Same—act of 1861 has not conferred, the right to contract generally. Under the Married Woman’s act of 1861, the common law disability ot a feme covert to contract is not changed, except so far as the power to con-' tract is a necessary incident to the right to hold and enjoy her separate property, and her capacity to make contracts respecting her separate property is an implication of law, and not of equity, and consequently all contracts made by her within the scope of that legal capacity, are legal contracts and cognizable in the courts of law.</p> <p>4. Same—doctrine of the English cases making her contracts an equitable cha/rge, not applicable in this State. The separate estates of femes covert, under our laws, not being the creatures of equity, but being legal estates, the reasons upon which the doctrine of the English cases subjecting the separate estates of married women to the payment of debts contracted by them, are not applicable in this State.</p>

<p>1. Parol evidence—to explain or vary written contract. It is a general rule of law, that where parties have deliberately put their engagements in writing, in such terms as import a legal obligation without any uncertainty as to the object or the extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing, and there is an end of parol evidence to show what the parties meant.</p> <p>2. Same—to show a mistake. Where a party in his bond bound himself to convey to another 280 acres of Wisconsin land, to be selected by the latter from a list of lands described in the bond itself, and made no reference to any other paper for their identification, it was held, that the obligor could not allege in his bill, to reform the bond for a mistake in the description of one of the tracts which had been selected, a parol contract, and prove by parol that the obligee was to select his land from those described in a registered certificate of purchase.</p> <p>8. It follows, from the general rules of evidence, that a party who resorts to equity for the correction of a written instrument in a certain specified particular, can not introduce parol evidence of an original parol contract, or terms or stipulations at variance with the other provisions of the written instrument, as to which no fraud, mistake or surprise is alleged.</p> <p>4. Mistake—must be clearly shown. It is incumbent on a party seeking in equity to reform a written contract, on the giound of an alleged mistake, to show, by clear and satisfactory evidence, the fact of such mistake as to both parties—in other words, that the mistake was mutual. It is not sufficient to show a mis-description of land in the contract, occurring through the party’s own negligence and mistake.</p>

<p>1. Chancery—granting new trial in suit at law. A court of equity will not grant relief against a judgment at law, on grounds that might have been available on a motion for a new trial, nor on the ground of newly discovered evidence, unless it appears that all reasonable means and efforts had been exhausted to discover it before the trial, and that the evidence is of a material character; and the existence of the newly discovered evidence must be shown by the affidavits of the witnesses. The unsupported oath of the complainant is not sufficient, when denied.</p> <p>2. Same—new trial on ground of surprise. One of the grounds relied on for relief against a judgment at law and for a new trial, was that of surprise in the testimony of the plaintiff, in testifying to the terms and duration of a contract. It appeared that lie testified to the contract as set forth in his declaration: Held, that the testimony could not afford a reasonable ground of surprise.</p> <p>3. Where it is urged as a ground for a court of equity to grant a new trial at law, that certain letters were introduced in evidence by the adverse party in corroboration of his testimony, which the complainant, since the trial, has discovered were not genuine, but fraudulently written by the other party to himself, after the commencement of the suit, but the bill does not give copies of any of the letters or their contents, except that they related to matters connected with the original contract: Held, that a new trial could not be granted on this ground, as the court could not see that the result, would have been different had the letters not been introduced in evidence.</p> <p>4. Same—relief against judgment—negligence innot preparing for trial. A court of equity will not open a judgment at law where the defendant was duly served and had reasonable time to prepare his defense, but neglected to do so. If, by the exercise of ordinary diligence, the defendant could have found the evidence relied on for a new trial in time for the trial, and did not, he can not be relieved from the judgment.</p> <p>5. Same—negligence of counsel. The negligence or mistake of counsel in the progress or trial of a suit at law, in not making a defense that was available, can not be relieved against in equity.</p> <p>6. The same reason exists for rejecting an application for a new trial made to a court of chancery, on the ground of newly discovered evidence, which would determine a court of law upon a motion for a new trial.</p> <p>7. It was alleged in a bill for a new trial, that the contract, as sworn to by the plaintiff in the suit at law, was not to be performed within a year from its date, and so was void under the Statute of Frauds, while the contract set out in the declaration was not within the statute, and so the defendant was misled, and prevented from pleading the statute: Held, that, as against any such supposed fraud, there was ample opportunity to have had relief in the suit at law, before the entry of the judgment.</p> <p>8. Same—relief against order restoring destroyed record. Where the record of a judgment which was destroyed by five was restored by order of the court, without notice to the defendant, a court of equity will not, for that reason, declare such order and the execution issued upon the judgment to be void, in the absence of any allegation and proof showing that the record, as restored, was not the true one.</p> <p>9. Pleading and evidence—general issue. Under the general issue in an action of assumpsit to recover damages of the defendant for discharging the plaintiff before the end of the term of his employment, evidence is admissible of the net earnings of the plaintiff during the unexpired term, in diminution of damages.</p>

<p>1. Partnership—sha/re in profits, when part of compensation, does not create. The fact that a party selling goods, etc., is to receive a portion of the net profits on sales, does not make him a partner with the owner, if they are given merely as a part of his compensation.</p> <p>3. Factor—what constitutes < ne a factor or commission 'merchant. A party agreeing with the owners to receive coal shipped to him for sale, and hoist from the vessel, and put the same on the dock, pay the lake freight, and charge the cost of hoisting and putting the coal on the dock, and the lake freight paid by him, against the coal, and who is to receive for docking, screening, selling and delivering the coal, including his commissions, the sum of $1.50 per ton on all coal delivered at any point outside the yard requiring carting, and $1 per ton on all coal delivered at the yard, and an additional commission of fifty per cent of the net profits on sales, etc., and who agrees to guarantee payments on all sales, advance on the coal as it is shipped $3 per ton of the invoice price, to be drawn for at sight on bills of lading, and to pay the shippers as the coal is sold the balance of the proceeds of sale, and who also agrees not to sell the coal below the market price, and render monthly statements of accounts of sales, etc., will be, as to the coal shipped to him, a factor or commission merchant. Such a contract will not constitute the relation of vendor and vendee, or that of partner.</p> <p>3. Same—poioer to sell on credit. The law7 is w7ell settled, that a factor is authorized to sell upon credit, except where the usage of trade is otherwise.</p> <p>4. Same—party to suit on. contract made in factor's own name. Where a written contract is made by a factor, in his own name, for the purchase or sale of goods for his principal, the principal is bound, and he may sue and be sued thereon in his own name, for the reason that it is treated as the contract of the principal as well as of the agent.</p>

Joseph E. Gary, Judge, presiding. This was a bill in equity, exhibited by Clara Benjamin and S. G. W. Benjamin, her husband, against George C. Campbell, Joseph O. Glover, Samuel R. Haven, Mary A. Stowell, etc., to foreclose a certain deed of trust executed by Charles H. Scriven to Samuel R. Haven, to secure the payment of a note of $6000, given by said Scriven to Clara Benjamin. The opinion of the court contains a statement of the leading facts of the case.

<p>Appeal from the Circuit Court of Henderson county ; the Hon. Arthur A. Smith, Judge, presiding.</p> <p>This was an action of debt, brought by Cyrus W. Steele against the appellant.</p>

<p>1. Mistake—correcting mistahe in will. Where a testator, in making his will, made mistakes in the description of several tracts of land attempted to be devised, some of the tracts not being described, and in several cases other and different lands were named, and made his widow residuary devisee “of all the rest and residue” of his “estate, remaining at the time of” his “decease, real, personal and mixed, of every name and description whatsoever,” it was held, that as the widow would, under such will, take all lands which failed to pass, through the mistake, she had a right to correct the mistake by conveying the lands to the proper parties, or to have the mistake corrected on bill filed by her for that purpose.</p> <p>2. Same—decree without proof. Where the residuary devisee in a will, files a bill in equity to have mistakes in the will corrected, the.effect of which is to deprive her of lands she would otherwise take under the same, a decree mat- pass as prayed without the hearing of any proof whatever of the fact of mistake having been made, and the minor heirs of the testator, in 'such case, having no interest in the lands thus taken from the complainant, can not he heard to complain of the decree reforming the will.</p>

Edwin S. Leland, Judge, presiding. This was an action of assumpsit, brought by James H. Vaughan against Jacob Seibel, upon a promissory note given by the defendant, for §464, payable to J. B. Drake, and indorsed in blank by the payee.

<p>Appeal from the Superior Court of Cook county; the Hon. Josiah McRoberts, Judge, presiding.</p>

<p>Secondary evidence—distract of title under act of 1872. Where the original records were destroyed by fire, and it was shown that certain deeds in a chain of title were destroyed, or could not be found, and an abstract of the title was produced, which had been made several years before by a firm whose business it was to make examinations of titles, and it appeared that such abstract came "from a former owner of the land in dispute, it was held, that it would be presumed that such abstract was made and delivered to some former owner and handed down as an accompaniment. of the muniments of title, and therefore admissible in evidence in proof of title in the place of the lost deeds.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.</p> <p>This was a bill in equity, exhibited by Samuel W. Cutler against Simeon D. Prince, for the settlement of partnership dealings, and the statement of an account between the complainant and defendant, as partners. The opinion of the court contains a statement sufficient to a clear understanding of the points decided.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p>

<p>1. Mabried women—jurisdiction of action by, for maintenance. It is indispensable, to give the circuit court jurisdiction of a bill of a married woman against her husband for a reasonable support and maintenance while living separate, under the act of 1867, that one of the parties shall reside in the county in which the suit is brought.</p> <p>2. Same—separation must be without -wife’s fault. The husband lias the right to select his domicil, and to change his residence, and it is the duty of his wife to accompany him, and if she refuses to go with him, he will not pe hound to afford her a support and maintenance while she thus remains away from him without fault on his part.</p>

<p>1. Discovery—of property, etc., of estates—waiver of defect in affidavit. Where a party charged with having effects belonging to an estate in his possession, etc., appears and goes to trial in the county court upon the merits, this will be a waiver of any defects in the affidavit by which the proceeding is commenced: Objections to the affidavit should be urged before submitting to the jurisdiction of the court.</p> <p>2. Same—evidence not confined to defendant’s answers. Under a proceeding under section 90 of the chapter of Wills, R. S. 1845, the court is not confined to the examination of the defendant, but either party has the right to introduce any evidence that is pertinent to the issue. The court is not even bound to examine the defendant under oath, but may do so in its discretion.</p> <p>3. Former judgment. Where a party is cited, under section 90 of the Statute of Wills, to reach property in his possession belonging to an estate, denies the fact, and is discharged by the court, it seems that such trial and discharge will be a bar to a recovery in another action in respect to the same property.</p>

Writ op Error to the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding. This was a suit brought by James Wood against Jesse W. Bond. The facts are stated in the opinion.

<p>1. Carrier—general rule of Ms liability. The liabilities of common carriers are for all losses, even inevitable accidents, except they arise from the act of God or the public enemy. By the act of God is meant something superhuman or something in opposition to the act of man.</p> <p>• 3. Same—duty in respect to goods shipped in bond. Where a carrier receives goods for transportation, knowing they are subject to duty to the United States government, and are being shipped from one collection district to another, and that, by the law of Congress and the regulations of the revenue department, they can be delivered only into a bonded warehouse, to be reached in compliance only with certain specific regulations, he impliedly undertakes that the goods shall be safely delivered at the place of their destination in the special manner required, and within a reasonable time, and if" a loss occurs in consequence of a neglect of such duty the carrier will be liable.</p> <p>3. Where a carrier received goods subject to duty, for transportation to Chicago, which, under the laws of Congress and the regulations adopted thereunder, could only be delivered into a bonded warehouse, under the</p> <p>• superintendence of some revenue officer, and that could only be done on written notice, which facts were known to the carrier, and the goods arrived at their destination, but the carrier neglected to notify the consignee or the proper revenue officer of their arrival until they were accidentally consumed by fire, it was held, that the liability of the carrier, under the circumstances, did not cease upon the arrival of the goods at their destination and that of warehouseman attach, and that the carrier was liable to the consignee for the loss.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.</p>

Lambert Tree, Judge, presiding. This was an action of replevin, brought by Alice Van Namee against Timothy M. Bradley and Michael B. McDonough, for certain personal property. The substance of the material facts appear in the opinion of the court. On the trial a verdict was had for the defendants, upon which the court rendered judgment, and the plaintiff appealed.

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p>

Lambert Tree, Judge, presiding. This was an application by the appellant, to have a judgment by confession, in favor of the appellee, set aside, and let in a defense to the merits.

Joseph E. Gary, Judge, presiding. This ivas originally a suit brought by Orville D. Smith, against Edward H. Smith, Sarah D. Broad and Sarah C. Broad, for the partition of laud. The questions involved in this appeal grow out of the presentation of a petition in the original cause by A. H. Powers, guardian ad litem for Sarah D. Broad, to have his costs and charges taxed as costs in the case, and the refusal of the court below to allow the same.

Edwin S. Leland, Judge, presiding. These two cases were actions of trespass, brought bv Nelson Card and Owen W. Huff, partners, etc., against Hubert A. McCaleb and Henry Holmes.

<p>Appeal from the Circuit Court of Cook county.</p>

<p>1. Mistake—correction as against a bona fide purchaser. In cases of mistake in written instruments, as against bona fide purchasers for a valuable consideration, without notice of the mistake, courts of equity will grant no relief. Therefore, a bill seeking to foreclose a mortgage in which a mistake occurs in the description of the land, which is sought to be corrected as against a purchaser for a valuable consideration, which fails to allege that the subsequent purchaser purchased with notice of the mistake, is defective.</p> <p>2. Description oe land—whether the meridian or the county controls. Where a mortgage described the land as “a certain tract of land situate, lying and being in the county of Warren, and State of Illinois, known, designated and described as follows, to-wit: the south-west quarter of section 12, in township 8 north, range 2 west of the third principal meridian Held, that the description by the meridian would prevail over that by the county.</p> <p>3. Fokeclosuke—mortgagor should be brought into court before deoree. On bill to foreclose a mortgage as against the mortgagee and a subsequent purchaser, and to correct an alleged mistake in the description of the land, there was no service had upon the mortgagor, and a decree was taken as against the purchaser: Held, that in such a case the mortgagor should have been brought into court before the decree was entered.</p>

William A. Porter, Judge, presiding. This was a petition, filed by Nicholas P. Iglehart against Asa Vail, to restore the record of a judgment which had been destroyed by fire. The opinion of the court states the material points and facts involved in the case.

<p>Appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.</p>

<p>Appeal from, the Circuit Court of Peoria county; the Hon. Sabin D. Puterbaugh, Judge, presiding.</p>

Charles H. Wood, Judge, presiding. This was an action of assumpsit, by John D. Leland against Samuel A. Barry, upon the cause of action set forth in the opinion.

Writ of Error to the Superior Court of Cook comity. This was an action of replevin, by Mary E. Rounds, against Edward Kehoe, for a piano. The opinion of the court states the facts.

<p>Appeal from the Circuit Court of Cook county; the Hon. Lambert Tree, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Charles H. Wood, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This was an action of trover, by Richard P. Barker against William R. Loomis, Chauncey Lewis, and Charles F. Bogue, for the conversion of a span of horses. Bogue not being found, the suit was dismissed as to him. There was a verdict and judgment in favor of the plaintiff for $311.15. The leading facts are stated in the opinion.

<p>Writ of Error to the Circuit Court of Mercer county; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Decebe—agreement held to operate as a satisfaction of. Where the land of A had been sold under a decree of foreclosure of a mortgage, given by him to secure the payment of the debt of another, but which contained no covenant to pay the same, and a personal decree taken against the mortgagor for the debt that remained after the sale, which was sought to be enforced, and the mortgagor and mortgagee then entered into an agreement to settle all matters in controversy, whereby the mortgagor turned out certain claims, which, when paid, were to apply in pay - ment, and gave his notes, secured by deed of trust on lands, including the same that was sold on foreclosure, for the balance claimed by the mortgagee: Held, that by the new arrangement the decree in the foreclosure was satisfied, and a subsequent sale of lands of the mortgagor, under the same, should be set aside as void, upon payment to the creditor of moneys expended by him to procure the title to any part of the lands described in the trust deed.</p>

<p>1. Chattel mortgage—title passes on breach. A chattel mortgage is but a conditional sale, and when the mortgagor fails to perform the condition, the title to the mortgaged property, so far as it is held by the mortgagor, vests in the mortgagee. Where possession is taken in accordanee with the terms of the mortgage, the title passes, even though the debt be not then due. The fact that the mortgagee is required to sell the property, and render the surplus, after payment of the debt, etc., to the mortgagor, will not prevent the title from vesting in the mortgagee, as purchaser.</p> <p>8. Same—mistake in date to certificate of acknowledgment. Where a chattel mortgage was in fact executed and acknowledged in 1871, hut the justice dated the certificate of acknowledgment in 1872, and the mortgage was recorded on the day of its execution, and it did not appear but that the entry in the justice’s docket showed the proper date: Held, that the mistake did not vitiate the mortgage, as no injury could have resulted from it to creditors or purchasers.</p> <p>3. Same—acknowledgment taken by justice out of his precinct. Where a chattel mortgage is acknowledged before a justice of the peace residing in the same precinct with the mortgagor, the acknowledgment will not be had because it was taken in another township or precinct. It will be good if taken anywhere in the count}-, provided the justice resided in the same election precinct with the mortgagor.</p> <p>4. Same—not affected because the justice keeps his docket in another township. A chattel mortgage will not he rendered invalid from the fact that the justice of the peace takes his docket out of the township of his residence, and keeps his office, for convenience, a few rods in an adjoining township, especially when it is readily accessible for inspection.</p> <p>5. Pasties plaintiff—in replevin. Where mortgagees of chattels seek to reduce them to possession by replevin, under a clause giving them this right whenever they should feel insecure, etc., they, being joint owners, must sue jointly.</p> <p>6. Justice of the peace—whether he may act out of his township. A justice of the peace having jurisdiction throughout his county, may issue any writ where he has jurisdiction, wherever he may be in the county, so that he make it returnable to his office, which must be in his township.</p> <p>So he may take and certify an acknowledgment to a deed, mortgage or other instrument anywhere in his county. But when he has to hear and adjudicate on any question, that must be done in his township and at his office, which must be at a known place.</p> <p>7. Execution—what subject to levy and sale. Where a chattel mortgage authorizes the mortgagor to retain possession of the property until default in payment, with no provision enabling the mortgagee to take possession in any other event than of default in payment, the interest of the mortgagor may be seized and sold under execution, at any time before the mortgage l debt falls due, and the purchaser will succeed to the rights of the mort- ' gagor, and nothing more.</p> <p>8. But where the mortgagee is authorized, by the terms of the mortgage, to take possession if the property is levied upon, or he shall,-at any time, feel unsafe or insecure, the levy of an execution on the property can • noi defeat the mortgagee’s right to reduce it to possession. In such a l case, it is only with the permission or non-action of the mortgagee that the property can be sold under execution.</p>

<p>Writ of Error to the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>This was an action on the case, brought by Cornelius Snider against Ziniri F. Ames, for malicious prosecution. The opinion of the court contains a summary of the facts of the case. On the trial, the jury found the defendant guilty, and assessed the plaintiff’s damages at $350, upon which judgment was rendered.</p>

<p>1. Deed—what requisite to delivery. It is an essential prerequisite that the deed or instrument in question should be understood by the parties to be completed and ready for delivery, in order to have a mere placing of it in the hands or possession of the grantee or his agent construed into a delivery.</p> <p>3. Same—recording by grantor, when not a delivery. Where a deed or mortgage, purporting on its face to be the joint instrument of the grantor and his wife, but which, in fact, was not executed by the latter, was recorded by the grantor, and retained by him for several years thereafter, when the same was executed and acknow-ledged by the wife, and then delivered, it was held, from the fact that it was the intention of both parties that the instrument -was to be executed by the wife, that it could not be regarded as delivered until affer its execution by the wife.</p> <p>3. Same—of husband and wife—acknowledgment of the latter under act of 1869. Under the act of 1869, many, if not all, the formalities required, and recording if required, by former statutes in respect to deeds of married women, are dispensed with. But it is still indispensable that the wife join with her husband in the execution of the deed, though it is not required that she shall, in order to join with him, execute it at the same time. She may execute the same years after her husband, and if it is then delivered, it will be good.</p> <p>4. Same—-whether there may he a second delivery. While it is true there can be but one delivery of the same deed, yet if the deed after delivery is altered by consent of the parties, by the wife of the grantor executing the same, and thereby releasing her dower, and then delivered, this will not be regarded as a re-delivery of the same deed, but of a new one, and the last delivery will be good, and the deed will take effect from such u ••livery.</p> <p>5. Alteration—when hy consent, operates as a new contract. It is a well set.'ed rule, that an alteration, even in a material part, may be made in a deed w note, and after execution of it is proved, or may be presumed, to liave been made by consent of all parties, where they are competent to contract, it will take effect from the time of the alteration as a re-execution of it, or as constituting a new contract.</p>

<p>1. Evidence—instruction as to credibility of witness. On the trial of a case where the plaintiff, a man of culture, testified, while the witnesses on the other side were Germans, apparently of little education, and one or two of whom spoke English quite imperfectly, the court instructed the jury that a witness might be impeached just as effectually by his manner of testifying, his feelings towards -the parties, inconsistency in his statements, if an)-", Ms want of intelligence, or the want of means of knowing the facts of which he testifies, as by the direct testimony of other witnesses: Reid, that the instruction was erroneous, as it was calculated to give the jury to understand that a witness might be just as effect-ually impeached by a lack of intelligence as by the positive testimony of other witnesses.</p> <p>3. Negligence—inguryfrom street car and plaintiff negligent. Where the plaintiff is driving with his buggy upon a horse railway track when a car is approaching from the opposite direction toward him, at a short distance and in plain sight, it is his duty to turn off the track to avoid a collision, and if he does not do so, through negligence or wilfulness, and a collision ensues, he can not recover against the railway company, even if the latter was also in fault, unless the company or its servants wilfully causes the injury, or are guilty of such negligence or reckless conduct as that the plaintiff’s is slight when compared with it.</p>

<p>Appeal from the Circuit Court of Warren county-; the Hon. Arthur A. Smith, Judge, presiding.</p> <p>This was an action of assumpsit, brought by William H. Webster against the Hartford Fire Insurance Company, upon a policy of insurance. The opinion states the facts of the . case.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p> <p>This was a bill for specific performance, filed bv John Fish against John Leser and Johanna Leser, his wife. The substance of the material facts is given in the opinion of the court.</p>

<p>1. New trial-—in respect to finding from the evidence. Where the evidence is conflicting as to the nature and extent of a contract, the verdict of the jury in settling the facts of the case will not he disturbed.</p> <p>3. Statute of Frauds—promise to pay the debt of another. Where the leading object of the undertaking is, to promote some object of the party’s own, his promise to pay is not within the Statute of Frauds, although its effect is to release or suspend the debt of another.</p> <p>3. Thus, where the defendant had employed a party to build a house, and, on his failure, the plaintiff, who was a sub-contractor, made known the fact to the defendant, and informed him that he would be obliged to quit work, and the defendant thereupon told the plaintiff to go on with his part of the work, and he would pay him, it was held, that the defendant’s undertaking was not collateral, but an original one, and was not within the Statute of Frauds, as assuming to answer for the contractor, his main object being to subserve a purpose of his own.</p>

<p>1. New trial—on finding of the facts. This court will be cautious in the exercise of the power conferred by statute to reverse a judgment on the ground that the finding of the jury is not supported by the testimony, for the reason that it is the province of the jury to pass upon and determine the weight of evidence and to find the facts, and because the jury and the court below have better opportunity of judging of the credibility of each witness’ testimony, and the weight to he attached to it, by seeing the witnesses on the stand, and their appearance, and manner of testifying.</p> <p>3. Same—-finding not tested by-the nuinberof witnesses, alone, on each side. The question whether a verdict should be sustained or set aside as to the finding of the facts, does not depend upon the number of witnesses testifying on each side upon the disputed points. The number of witnesses may be on one side while the decided weight of evidence may be on the other.</p> <p>3. Same—rule at common law. At common law the finding of the jury as to the facts was not. subject to he reviewed in an appellate court, but the judge trying the case had the power to grant a new trial, if he believed the evidence did not sustain the finding. If the jury, from prejudice, passion or a misapprehension of the evidence, found a verdict manifestly against its weight, the judge could thus prevent injustice and wrong by submitting the cause to another jury.</p> <p>4. Contract—may be changed by subsequent agreement. The right to contract includes the right to modify, change or abrogate a pre-existing contract.; therefore, any contract not under seal, whether in writing or verbal, may, by a subsequent verbal contract, he annulled or changed, and the last contract, if supported by a consideration, will bind the parties.</p> <p>5. Same—consideration. Where a party, employed under a special verbal contract to furnish materials and erect a building, finding himself unable to perform without great loss, .owing to a rise in prices, informed his employer that he would not comply with the contract, and the employer directed him to go on and finish the work and he would pay him what was right for it: Held, that the new agreement was based upon a sufficient consideration, and valid. The mutual promises of the parties were sufficient to support the new agreement.</p>

Joseph E. Gary, Judge, presiding. This was an action on the case, brought by Ferdinand Stumps, by his next friend, A. M. Pence, against The Chicago, Burlington and Quincy Railroad Company, to recover damages for a personal injury. This case was before this court before, and is reported in 55 Ill. 365. All the material facts are stated in the opinion.

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. W. W. Heaton, Judge, presiding.</p>

<p>1. Assignment—by trustee in deed of trust. The assignment of a deed of trust and the note secured thereby, by the trustee, having no interest in the trust, will not invest any interest or title in one not beneficially interested in the trust. It will not have the effect of a sale or conveyance by the trustee made pursuant to the terms Of his deed.</p> <p>2. Secondary evidence—affidavit of loss by person not a party, inadmissible. It is error to receive the affidavits of persons not parties to the suit, and who are competent witnesses in the case, to prove the loss of the instrument sued on, so as to admit secondary evidence of its contents.</p> <p>3. Same—contents of lost note can not be shown by affidavit. Affidavits arc not admissible to prove either the contents of a lost note or the fact of its assignment. They are admissible only to lay the foundation for the introduction of secondary evidence.</p> <p>4. Assignment—when party seeking to foreclose deed of trust as assignee must prove assignment. On bill to foreclose a deed of trust by one claiming as assignee of the debt secured, against one claiming title under a prior deed made by the grantor in the trust deed, where the assignment of the debt is denied in the defendant’s answer, it is incumbent on the complainant to prove his interest in the debt by showing the assignment thereof as alleged by him.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lambert Tree, Judge, presiding.</p>

<p>1. Judicial sale—rule of caveat emptor applies. It is a general rule, subject to fexv, if any, exceptions, unless it be when a fraud is practiced upon the purchaser, that the doctrine of caveat emptor applies in all judicial sales, for the reason that the officer selling has no power to warrant title or impose terms or conditions on the sale, beyond those required by law, and because the purchaser is presumed to have examined the title and to know what he is acquiring by his purchase.</p> <p>2. Same—officer selling exercises only a naked power. It is the policy of the law to invest the sheriff, master in chancery or administrator, in making sales of real estate, with only a mere naked power to sell such title as the debtor or deceased had, without, warranty, or any terms, except those imposed by law. Hence, a purchaser at such sale takes the risk of the title, and the validity o'f the proceeding under which the sale is made, upon himself.</p> <p>3. Subtíog-atioit—in what eases it applies. The doctrine of subrogation in equity is confined to the relation of principal and surety, and guarantors, and to cases where a person, to protect his own junior lien, is compelled to remove one which is superior, and to cases of insurers paying losses. In the first class named, the doctrine is applied to avoid a multiplicity of suits. Iu the second class, the person discharging the superior lien is treated as its purchaser or assignee, unless the facts show it was intended as an absolute payment. In the last class, the insurer is subrogated to the remedies of the assured, upon the ground that upon payment he is entitled to the property insured as being abandoned by the assured.</p> <p>. 4. Same—of purchaser at administrator''s sale of land to claims paid by the sale. A purchaser of land at an administrator’s sale is not entitled in equity to be subrogated to the claims of creditors which have been paid by the purchase money, where the title fails for a want of jurisdiction in the court ordering the sale over the persons of the heirs.</p> <p>5. Where the purchase money at such a sale has been applied in removing incumbrances or charges upon the lands of an estate, and the title fails, it has been held that the purchaser may he subrogated to the lien so discharged by his payment; hut claims against an estate are not regarded as such a charge upon the real estate. The land may be subjected to their payment upon a deficiency of personal assets, hut the administrator takes, in such case, only a power, which must bo exercised within the period of seven years, unless a satisfactory excuse can be shown for the delay.</p> <p>6. A volunteer, or any person, without the consent of the heirs of an estate, can not, by the payment of simple debts against their ancestor, recover the same from the heirs because they have inherited land from the ancestor. Such a person can neither sue the heirs nor charge their lands thus inherited for its.repayment, for the reason that, except in the purchase of commercial paper, one person can not make another his debtor without his consent, either at law or in equity.</p> <p>7. Descent—whether lands by descent are chan'ged with ancestor's debts. It is not accurate to say that lands descending to heirs are charged with the debts of the ancestor. They are only liable to he charged with their payment upon a deficiency of personal assets, and this right may be lost by delay.</p> <p>8. Limitation—of application to sell lands of a deceased person to pay debts. The period of seven years is adopted in this State as the limit ■within which proceedings may he instituted to sell lands by administrators or creditors of an estate to pay debts, unless special circumstances are shown explaining and justifying the delay.</p>

<p>h Contract—whether dependent or independent undertakings. Govenants and undertakings are construed to be dependent or independent, " according to the intention of the contracting parties, if that intention can be discovered. Where the covenants or undertakings are independent of each other, one party may maintain an action against the other, without averring a performance on his part, of an independent undertaking, or averring full performance.</p> <p>2. Where the plaintiff agreed with the defendant to put up a printing press for the latter, in complete running order, at a certain price, and the defendant was to elect, within thirty days thereafter, whether he would keep and pay for it, it was held, where the defendant kept the press, that the right to maintain au action for the price, when due, became absolute, and was not dependent upon the further undertaking of the plaintiff to keep the press in “order permanently,” and to do other things "which would extend long after the time fixed for payment.</p> <p>8. Same—recoupment. In such a case the defendant, when sued for the price, had the right to recoup any damages sustained by- a breach of any of the other undertakings of the plaintiff", which were independent, or bring a separate action whenever they might be broken.</p> <p>4. Same—construed as to time of acceptance or exercising option. Where a printing press was sold, giving the purchaser thirty days after it was set up in running order to determine whether he would keep and pay for it, the seller agreeing to keep it in permanent order, it was held, that if the purchaser kept the same after thirty days, without notice of liis election not to keep the same, lie was responsible for the price, notwithstanding lie made objections, within that time, and had the seller make repairs, as that would be referred to the seller’s duty’ to keep it in repair.</p>

<p>Appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.</p> <p>This was an action of assumpsit, by Margaret Varner against Andrew J. Varner, the declaration containing only the common counts. The defendant pleaded the general issue, and the Statute of Limitations—that the.causes of action did not accrue within five years before the commencement of the suit. The plaintiff replied: (1.) That the said several causes of</p> <p>action in the several counts, etc., and each of them, did accrue to the plaintiff within five years before, etc. (2.) That the defendant did, within five years next before the commencement of this suit in this behalf, undertake and promise, in manner and form as she, the said plaintiff^ has above thereof complained against him, to-wit: at, etc. (3.) That, heretofore, to-wit: within five years last next preceding the commencement of this suit, he, the said defendant, undertook and faithfully promised that he would pay to the plaintiff each and all of the several sums of money in said declaration mentioned, to-wit: at, etc.</p>

<p>1. Fraudulent representations—right of rescission for. A person who is induced to part with his property on a fraudulent contract, on discovering the fraud, may avoid the contract and claim a return of what has been advanced upon it. He has his election to affirm or disaffirm the contract. But if he would disaffirm it, he must do so at the earliest practicable moment after discovery of the fraud.</p> <p>2. Same—rescission not allowed after unreasonable delay. Where lands were exchanged in September, 1859, and one of the parties sought to avoid the contract on the ground of fraudulent representations as to the locality, value, etc., of the land taken hy him, and it appeared that he learned of the falsity of the representations within a year after the exchange, and that lie never expressed any dissatisfaction or attempted to rescind the contract until the day before filing his bill, which was on January 24th, 1865: Held,, that owing to the unreasonable delay in filing his bill, it was properly dismissed.</p> <p>3. Chancery practice—when laches must be insisted, on in answer. The rule requiring a defendant in a chancery suit to set up and insist on the complainant’s laches in filing his bill, is for the purpose of enabling the complainant to amend his bill and account for the delay, so as to admit proof to meet the objection, and will not be extended to a case where the hill attempts to account for the delay, which is not sustained by the proof. In the latter case the objection maybe made without first insisting on it in the answer.</p> <p>4. Homestead—waiver by abandonment in favor of grantee. Although a deed for premises occupied by the grantor as a homestead, may contain no release of the homestead, yet if he voluntarily abandons the premises and permits his grantee to enter and hold the same, this will amount to a waiver of the right. And such waiver can not be avoided for the fraud of the grantee, after such a delay that a rescission of the contract is denied.</p> <p>5. Chancery—reheaving. An application for a rehearing in a cause in equity, on the ground of newly discovered evidence, is properly denied when such evidence is merely cumulative and not conclusive.</p>

Thomas F, Tipton, Judge, presiding. This was a proceeding, instituted by Charles G. Anderson, against Alice M. Armstead, to enforce a mechanic’s lien for labor done and materials furnished on premises belonging to the defendant.

<p>Appeal from the Superior Court of Cook county.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding.</p>

<p>1. Impounding animals—construction of act of 1869. The act of 1869, making it unlawful for the owners of domestic animals of the species horse, bull, etc., to suffer them to run at large in certain counties, and authorizing them to be impounded when found at large, etc., does not authorize the taking up of any cow, heifer, or steer. The term “species bull,” in the act, embraces bulls of all kinds and descriptions, without reference to size, age or quality, but not cows, heifers or steers.</p> <p>2. Same—township ordinance. A township ordinance requiring the owners of horses and cattle to confine them during the night-time, and imposing a fine of twenty-five cents per head for each animal suffered to run at large in the night-time, can not be construed to justify the impounding and detention of such animals when not confined as required.</p> <p>3. Same—distress for damages. As cattle may lawfully run at large in this State, and the owner of land can not recover for trespass committed by them upon his land unless the same is inclosed by a lawful fence, it follows that he can not take them damage feasant, and hold them until amends are made, as there is no injury requiring amends where he can not maintain trespass.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p> <p>This was an action on the case, brought by Mary Kelly, a married woman, against the city of Chicago, to recover damages for personal injuries received by a fall caused by a defect in the sidewalk of the city. The facts of the case are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court of Cook county ; the Hon. John G. Rogers, Judge, presiding.</p> <p>This was an action of trespass, brought by Elizabeth Van Vleck against Larissa P. Grund, R. P. Blanchard, J. J. Blanchard and Thomas Leddy. The opinion of the court states the facts necessary to an understanding of the case.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding.</p> <p>This was a bill in equity, filed by John E. Sutherland and others, as the heirs at law of John E. Sutherland, deceased, against Adeline B. Sutherland and others, for the partition and settlement of the estate of the deceased. The opinion of the court presents the points in controversy, and the leading facts relating thereto.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Silvanus Wilcox, Judge, presiding.</p> <p>This was an action of debt, brought in the name of Riley W. Hoyt, for the use of Edward S. Joslyn, against James Morgan, Albert Lav and Perry Hannah, upon the bond of Perry Hannah as conservator of William W. Merrill, an insane person. The opinion of the court states the facts.'</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. Charles H. Wood, Judge, presiding.</p>

<p>New trial—on finding as to the facts. Although this court is reluctant to reverse a judgment, unless there is error upon a question of law, yet it is the settled rule to reverse where there is no evidence to sustain the verdict, or where the verdict is manifestly against the weight of evidence.</p>

Arthur A. Smith, Judge, presiding. This was an action of assumpsit, brought by John Milroy against John McDowell and Peter Gordon, upon a promissory note. The opinion states the facts.

<p>Appeal from the Circuit Court of LaSalle county; the .Hon. Edwin S. Leland, Judge, presiding.</p>

Charles H. Wood, Judge, presiding. This was an action of assumpsit, brought by Nathan Cor-with and John E. Corwith, partners, against Belden F. Culver, to charge the defendant as a stockholder of the Balbac Smelting and Refining Company, for the payment of a judgment recovered by the plaintiffs against the company. The material facts of the case are stated in the opinion of the court.

<p>1. Witness—competency of, in suit against an estate for an account. Where, in a suit at law by minor heirs against an administrator of an estate, to recover moneys received by the intestate, which belonged to the plaintiffs’ father’s estate, it was, by stipulation, agreed that the plaintiffs’ mother and her present husband should be made parties, and the cause should be heard by the court, and determined according to equity: Held, that the mother of the minor plaintiffs was not a competent witness to testify generally for the purpose of establishing her own claim, but that she was competent to prove any fact to establish the claim on behalf of the minor plaintiffs.</p> <p>3. Same—when competent for one purpose hut not for general purposes, it should appear for what purpose his testimony is sought. Where a witness sought to be examined is competent as to certain facts, but not as a general witness, and be is objected to as incompetent, the party desiring his testimony should state what he proposes to prove by him, so that the court, may know that it is proper, otherwise this court can not say there is any error in refusing to allow him to testify.</p> <p>3. Same—as to. conversation after the death of intestate in suit against his estate. In a suit against the administrator of an estate upon a claim, the administrator proved certain declarations or admissions of the plaintiff as to the state of the account, after the intestate’s death. The plaintiff then offered to testify and explain what he did say to the witnesses, which the court below refused to allow: Held, that the court erred, as the plaintiff was a competent witness to explain or contradict the statement of the witnesses in regard to the particular conversation.</p> <p>4. Account—when cause should he referred to master to state. Where it was stipulated, in a suit at law, that the same should be heard by. the court as an equitable proceeding; and that the finding of the court should include all matters triable at law or in equity, and the balance found in favor of such as should be entitled thereto, the same as if separate suits had been brought: Held, that the case should haveobeen referred to the master in chancery or a special commissioner to state and report an account between the several parties, as, under the stipulation, the suit must he treated and conducted as in chancery.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This was a bill in chancery, by the appellant against the appellees, to redeem certain lands. It appeared that the notice of sale by the trustee was published by the trustee on the 2d day of May, 1867, in the Chicago Evening Post, and on each day thereafter, Sundays excepted, to the 12th day of May inclusive, and that the sale occurred on the 13th of May, 1867, making nine insertions of the notice before the sale.

William A. Porter, Judge, presiding. This was an action of assumpsit, by Lewis Dutton against George W. Clark, Jr., to recover the value of certain notes and other property alleged to have been sold by the plaintiff to the defendant, and for which the defendant was to give his note, as was alleged, for §5000, with security. The cause was tried by the court, without a jury, who found for the plaintiff, and allowed, interest on the debt, and rendered judgment accordingly.

Whit op Error to the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding. This was an indictment against Frederick Mapes for selling intoxicating liquor to one Bissel Bice, who, it was alleged, ivas in the habit of getting intoxicated. The indictment, leaving out the formal parts, was as follows: “1.

Writ op Error to the Circuit Court of Will county; the Hon. Jesse O. Norton, Judge, presiding. This was an action of assumpsit, brought by Mary E. Stern-burg, administratrix of the estate of Philip A. Sternburg, deceased, against Hiram Gould and Amasa Richardson, upon two promissory notes. The facts appear in the opinion.

Sabin D. Poterbaugh, Judge, presiding. This was an action of replevin, brought by Charles Seaburv, against Amos M. Ross and D. D. Ross, before a justice of the peace, for a mare, and taken by appeal to the circuit court. A trial was had, resulting in a verdict for the defendants, and finding that Amos M. Ross was the owner of the property, and assessing the damages at $117. The defendants remitted $67, and judgment was rendered in favor of the defendants for $50 damages.

Writ of Error to the Superior Court of Cook county. This was an action of assumpsit, brought by Theodore H. Seavey, against William L. Rogers. The proceedings in the court below are stated in the opinion of the court.

<p>Appeal from the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding.</p> <p>This was a creditor’s bill, filed by Balph Emerson, against A. C. Bemis, and Orissa "V. Bemis, his wife, to subject certain real estate conveyed to Orissa V. Bemis, to the payment of a judgment against A. C. Bemis. The opinion of the court states the essential facts of the case.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lambert Tree, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. William W. Farwell, Judge, presiding.</p>

Silvanus Wilcox, Judge, presiding. This was an action on the case, by Horace H. Goodrich against Crin D. Howell and Leland H. Angelí, to recover damages for malpractice of the defendants, as physicians, in setting a broken arm of the plaintiff's infant son. The suit was originally brought in the circuit court of Kane county, but by agreement the venue was changed to Kendall county, and afterwards to DeKalb county.

William A. Portee, Judge, presiding. This was a petition filed by William Miller, who did business under the name of Miller & Co., against James Sharkey, William Sharkey, N. C. Hinsdale, Jacob L. Schureman, Francis M. Melick, James H. Bowen, George S. Bowen and Chauncey T. Bowen, to enforce a mechanic’s lien. Schureman and Melick bought into the concern after the work was done for which the property ivas sought to be charged.

<p>1. Evidence—certified copy of articles of Consolidation of railroad companies. In a suit against a consolidated railway company upon promissory notes given by one of the original companies forming the new company, copies of the articles of consolidation on file in the office of the Secretary of State, duly certified by the Secretary of State, and authenticated by his seal of office, are competent evidence to prove the consolidation, the same as the original articles would be.</p> <p>2. Consolidation of railroads—in what name to he sued. Whet e a railroad company, after the execution of promissory notes, is consolidated with another company, and the company thus formed assumes a new name, the company may be sued by the new name thus assumed, and it will be estopped from denying the name by which it is sued.</p>

<p>1. Husband—liability for wife's support while lining apart from him. The husband is not responsible even for necessaries furnished his wife when residing apart from him, if she left him without good cause and without his consent; but if the separation was caused by improper treatment on his part, or he sends her away, or tliey separate by consent, without any provision for her maintenance, he will be liable for her necessary support, and to that extent he sends credit with her.</p> <p>2. Same—remedy at law and not in equity. Although it is clearly the duty of a husband to provide a suitable maintenance for his wife, if within his power, yet, according to the course of the English authorities, it is not an obligation or duty enforceable in a court of equity by decreeing a separate maintenance. The remedy at common law is by an action at law against the husband, to be brought by any person supplying the wife with necessaries according to her rank and condition.</p> <p>8. Husband and wife—separate maintenance given in equity by statute. The object of the statute of 1867 was, to remedy this defect in the common law, and to confer upon courts of equity jurisdiction to enforce the common law duty of the husband to furnish support and maintenance for his wife suitable to the condition of the parties in life, upon her application, in all cases where she is living separate and apart from him without her fault, or in other words, under such circumstances as would enable her to avail herself of the common law remedy of obtaining such support upon the credit of her husband.</p> <p>• 4. Therefore, if the wife is living separate and apart from her husband on account of improper treatment by him, or he sends her away, or if he assents to or acquiesces in her leaving him, he will be liable under the statute to a decree in equity for her separate maintenance and support, on bill filed by her.</p>

Charles H. Wood, Judge, presiding. This was an action of assumpsit, by Josiah B. Butler and Windsor P, Freeman, partners, against Aaron B. Searing and Joseph B, Searing, partners. The declaration contained three special and the common counts.

<p>Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p>

<p>1. Account—partnership. On bill to have a certain purchase declared a joint one, and fpr a share of the profits realized by the defendant, the bill also showing some other partnership dealings, it is not error to dismiss the bill on finding the question of the purchase for joint benefit against the complainant, instead of retaining it for an account, where the proofs taken fail to show anything due the complainant.</p> <p>2. Partnership. In this case the complainant sought to share in the profits realized by the defendant in the purchase and sale of a tract of land, on the ground that the parties were partners in the transaction, but the evidence failed to establish the fact.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Josiah MoRoberts, Judge, presiding.</p>

<p>1. Ihtoxicatikg liquors—statute relating to, construed. The sixth section of the act of 1872, relating to intoxicating liquors, which provides that every person guilty of violating the “first and second sections,” shall forfeit, etc., does not require the violation of both sections before a party can be subjected to the punishment provided, but the penalties named are for the violation of either the first or second section.</p> <p>2. Same—third sec. of act of 1872 does not authorize the destruction of private property. The third section of the act of 1872 does not authorize tlie summary destruction of private property. It simply declares all places where intoxicating liquors are sold in violation of the act, common nuisances, and provides that they may be shut up, and the traffic carried on therein abated.</p> <p>8. Same—constitutional power to abate nuisances in respect to. Under wliat is called the police power, the legislature has the right to authorize tlie abatement of a public nuisance; and the carrying on of an illegal traffic in intoxicating liquors, and the assembling of idle and vicious persons for that purpose, is a nuisance, and may be so declared, and abated according to law.</p> <p>4. Same—whether act of 1872 is in violation of the constitutional provision prohibiting the granting of special or exclusive privileges, etc. If, at the time of the passage of the liquor law of 1872, there was no law under which a person not residing in an incorporated town or city could obtain a license, it does not follow that the act, for that reason, contravenes the constitutional provision which prohibits the passage of local or special laws granting to any corporation or individual any special or exclusive privilege, etc., as the act is a general law, operating equally upon all classes of persons within the State.</p> <p>5. Constitutional law—statute, whether special or general. A statute that applies to and confers the same general powers on all incorporated towns aud cities in the State, is not necessarily a special law, and is not inhibited by any provision of the constitution against special legislation.</p> <p>6. A statute, general in its operation, to confine the power to license the sale of intoxicating liquors to incorporated towns and cities, where the police force is more efficiently organized, and can better control it, will not be, it seems, an unauthorized exercise of the police power of the State in providing against the evils resulting from the traffic in such liquors.</p> <p>7. Foreign statute—construction. Where a statute of another State is substantially adopted, it will be presumed that the construction previous^ given to it by the courts of the State from which it is taken, is also adopted, unless such construction is inconsistent with the spirit and policy of our own laws.</p>

Weit of Eeeoe to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding. This was an indictment against John P. McCutcheon, for the sale of intoxicating liquor to Jay Porter, a minor. The following is a copy of the indictment: “1.

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. William W. Heaton, Judge, presiding.</p>

William A. Porter, Judge, presiding. This was a bill in chancery, by Charles West against Clancey J. Dempster and others, to set aside the sale of certain mortgaged premises, made under a power contained in a mortgage,.and for redemption, etc. The opinion of the court gives a statement of the leading and material facts of the case. The defendants, Clancey J. Dempster and John H. ICedzie, appealed.

<p>1. Mabbied woman—power to purchase real estate. It was held, in Carpenter v. Mitchell, 54 Ill. 126, that the power given to married women to acquire property by descent, devise, "or otherwise,” was sufficiently broad to embrace an acquisition by purchase, and that, when she exercised the power lw pi urch using- real estate, it was under the same terms and conditions as if done by one under no disability, so far as to make the contract binding upon and render her separate estate liable in equitsto discharge the indebtedness thus incurred. In Cookson v. Toole, 59 Ill. 515, this case was so far modified as to hold her liable at law as well as in equity, upon contracts made within her capacity under the statute.</p> <p>2. Same—statutes relating to, liberally construed- It has been the settled policy of this court to give a liberal construction to the acts of 1861 and 1869, relating to married women and their separate property, and to enforce their several provisions according to the plain and obvious meaning of the language used, to effectuate the legislative intent.</p> <p>3. Same—right to contract necessary to the full exercise of powers given. The right to contract is indispensable to the acquisition of earnings and to the unrestricted possession, control and enjoyment of property.</p> <p>4. - Same—right to engagein business and, contract debts. Under the acts of 1861 and 1869, no reason is perceived why a married woman may not, at least with the consent of her husband, earn money in trade as well as by manual labor, or carry on the business of a grocery store, contract debts for goods to be used in trade, as well as for animals and farming implements, or for lands and farm labor.</p> <p>5. So, where a married woman, by her husband’s consent, engaged in the business of buying and retailing groceries in conjunction with another, who was a silent or secret partner, her husband acting as clerk for the firm, and the wife purchased goods in her own name, to be used in the business, and there was no pretense that the husband purchased the same, or that they -were bought for his use, it was held, in an action against the wife for the price, that she was liable the same as a feme sole, and that it was not necessary to have made her husband a defendant with her, he not being liable for her contracts.</p> <p>6. Same—husband's acts as agent do not impair her rights. It has been repeatedly held by this court, that the husband may act as the agent of his wife in the control and management of her separate property, and that when he so acts in good faith, and is not permitted thereby to defraud others, it in nowise impairs her right to her property, or to its increase or profits.</p> <p>7. Interest—on account, when admitted to be due. Where a debtor, on presentation of his account, admits its correctness, and promises to pay the same, this will render it liquidated, and it will draw interest thereafter at the rate of six per cent per annum.</p> <p>8. Judgment—in excess of sum indorsed on justice's summons. Where a judgment is rendered on appeal for a greater sum than that indorsed on the justice’s summons, if the excess is made up of interest accruing after the date of the summons, there will be no error.</p>

Henry Booth, Judge, presiding. This was an action of assumpsit, by John R. Bensley, David W. Bensley and Reuben Wagner against the Chicago and Northwestern Raihvay Company. The material facts may be found in the opinion of the court.

Joseph E. Gary, Judge, presiding. This was an action of ejectment/ by Henry F. Vallette against John I. Bennett, for the recovery of the north half of the west 17 acres of the south half of the east half of the northeast quarter of section 14, township 38 north, range 14 east of the third principal meridian. • It appears, from the record, that in 1835, John K. Boyer entered the east half of the northeast quarter of section 14, township 38 north, range 14 east, including the…

<p>1. Statute ob Frauds—must be pleaded. In an action upon a verbal contract, in which the defendant pleaded only the general issue, it. was held, that the defendant could not take advantage of the Statute of Frauds, even if the contract was within it.</p> <p>2. Same—to pay board, when not collateral. Where a party contracts to pay for the board of miners out of funds in his control, the contract not being collateral, but primary, there being no contract with the miners by the person boarding them, the contract is not within the Statute of Frauds.</p> <p>3. Contract—when terminated. Where a coal company employs a person to board its miners, there being no time fixed for the continuance of the agreement, either party may terminate it, on notice to the other.</p> <p>Refusing to pay the board agreed to be paid will not, of itself, destroy the contract, but the company will still remain liable for board after such refusal.</p> <p>4. Evidence—refreshing witness' memory. In a suit to recover pay for boarding a lot of miners, the plaintiff, in his testimony, referred to the bill of particulars made out by another under his direction, and testified that he knew it to be correct. He testified, from recollection, to the number of men boarded, the rate per week and the aggregate: Held, no error in allowing him to refer to the account, as he could not be expected to give the name of each man who boarded with him.</p> <p>o. It. is no objection to testimony, if a witness is permitted to refer to a paper to refresh his memory, provided he can say he knows the items ■ to be correct because they were true when made and placed in his book.</p>

<p>1. County court—intendments in favor of its jurisdiction. The county court, when acting within the sphere of its jurisdiction, is not to be regarded as an inferior court; and where such court adjudicates upon the administration of estates over which it has a general jurisdiction, as liberal intendments will be indulged in its favor as to the proceedings of the circuit court.</p> <p>2. Same—decrees of, can not be attacked collaterally, except for want of jurisdiction. As the jurisdiction of the county court over the sale of real estate, to pay debts of deceased persons, is concurrent with and as large as that of the circuit court, its decrees, in a collateral proceeding, can only be attacked for want of jurisdiction. Mere errors can only be urged in a direct proceeding to reverse.</p> <p>3. Administrator’s sales—;failure to preserve evidence in proceeding to sell lands. A proceeding by an administrator to sell lands to pay debts, is not a chancery proceeding; but if it were, the failure to preserve the evidence in the record, upon a decree of sale, in nowise affects the jurisdiction, and can not he urged in a collateral proceeding attacking the sale.</p> <p>4. Same—;jurisdiction, how acquired. In a proceeding to sell lands to pai' debts of a deceased person, jurisdiction of the persons of the defendants is acquired b3r service or ly- appearance, and of the subject matter, b3" the filing of a petition, b3r the executor or administrator, containing the necessary allegations, which, under the law, calls upon the court to act.</p> <p>o. Same—sufficiency of petition as to appointment of the petitioner. It is not essential, to confer jurisdiction, that the petition of an administrator for leave to sell real estate, to pay debts, shall state how the petitioner was appointed, or that he was appointed by a court having power. It is sufficient to state that the petitioner is the administrator of the estate, general^-.</p> <p>6. Same—sufficiency of petition as to statement of debts. An allegation in the petition “that there are debts now standing against said estate, which have been allowed, to the amount of--- dollars, and that there are no assets in petitioner’s hands, the personal property being all exhausted, wherewith to pay said debts, without selling real estate,” is a sufficient statement of indebtedness to authorize a decree for the sale of lands.</p> <p>7. Former decision. The rule in this regard, as stated in Bree v. Bree, 51 Ill. 367, is inaccurate. What should have been said is, that there must be some allegation that there are debts against the estate, and that there is no personal property, or there being such, that it is insufficient for the payment of debts.</p> <p>8. Same—sufficiency of petition in a collateral proceeding. It is sufficient, to give jurisdiction, where the allegation is made, no matter how informally, that there are debts against the estate, that the personal property is insufficient to pay them, and that the deceased left real estate. More formal allegations may be necessaiy on demurrer, when it may be necessary to show that the petitioner has made a just, and true account of the personal estate, etc. It is not necessary to the jurisdiction to state the amount of the debts.</p> <p>9. Same—decree giving longer credit than the statute provides. The statute empowering an administrator to sell real estate on a credit of not less than six nor more than twelve months, applies only where the decree of the court gives no directions as to the sale, and it is not even error for the decree of sale to order a longer or different credit to be given.</p> <p>10. Same—irregularity in sale does not invalidate it. An irregularity in an administrator’s sale of real estate, by failing to comply with the statute, will not invalidate the sale. If the proper notice is not given of the sale, it can be taken advantage of only on motion to set the sale aside.</p> <p>11. Same —jurisdiction to render second decree. Where, after a decree' for the sale of land by an administrator, the court, at a succeeding term, makes a second decree," modifying the first, without a new notice to the defendants, the latter will be void, for want of jurisdiction.</p> <p>12. Same—recital of decrees in deed. Where a subsequent decree is made, but which confers no power to sell, and is intended only to modify the first decree as to the credit to be given, the administrator’s deed will be sufficient if it contains the first decree only.</p> <p>13. Same—no confirmation of sale necessary. The statute does not require that an approval of an administrator’s sale of land shall be necessary to vest title in the purchaser, as in the case of a guardian’s sale.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon.. William W. Heaton, Judge, presiding.</p>

<p>1. Practice—defendant confined to defense set up in his affidavit of merits. Where the plaintiff files, with his declaration, an affidavit sliowingthe nature of his demand, and the amount due him, etc., and the defendant, to prevent a judgment by default, files an affidavit of a defense to a certain sum, which the plaintiff confesses, there is no error in rendering judgment in favor of the plaintiff for the balance of his demand, and in refusing a continuance to enable the defendant to interpose a different and new defense to the whole cause of action.</p> <p>2. Same—time for objecting to sending process out of county. It is too late to object that both defendants did not reside in the county where the suit was brought, after pleading to the merits, as that operates as a waiver of the objection.</p> <p>3. The rule is general, that all objections to the writ or to the jurisdiction of the person of the defendant must be urged before the filing of a plea in bar, or they will be waived.</p> <p>4. Pendency of suit in another State no defense to suit in this State. The mere pendency of a suit against the defendant in another State can not be pleaded in bar or in abatement of an action in this State, even if between the same parties and for the same cause of action.</p>

<p>1. Corporation—what a good execution of contract. The execution of a lease or sealed instrument, by the president of a private corporation, in his own name, for the company, will lie a good execution by the company, and binding upon it, and not upon the president</p> <p>2. Contract—rule for ascertaining real parties. Where it becomes a question whether a contract executed by an officer of a corporation, is that of the corporation or of the officer, the court, will look to the conclusion of the instrument, as well as its commencement, for the description of the parties.</p> <p>3. In this case, the lease in suit described the president of an incorporated company as the party of the second part, and the covenant sued on was by ‘"the said part)- of the second part,” and the conclusion recited that the parties thereto had set their hands and seals to the same, and the name of the company was written before the second seal, after which was written the words, llby Edward Lawrence, president:” Held, that it was competent to allege in the pleadings and show by the proof, that the company intended to make the lease and covenant.</p> <p>4. Mistake in name—avoided by pleading and proof. Where a deed is made to a corporation by a name varying from the true one, the corporation may sue in its true name, and aver in the declaration that the defendant made the deed to them by the name mentioned in the deed.</p> <p>5. And where a person executing an instrument under seal, is described therein by a different name, an action may he maintained against him upon the instrument, upon averring in the declaration and making proof that he executed the same, hut was described therein by the name there appearing.</p>

<p>1. Allegations and pbooes. A party can not make one case by his pleading and obtain relief on another made by the proof.</p> <p>3. Evidence—answer to petition for mechanic's lien. The answer, under oath, to a petition for a mechanic’s lien, where the oath is not waived, so far as it is responsive to the allegations of the petition, must be received and treated as evidence.</p> <p>3. Mechanic’s lien—contract must be with owner of land. It is indispensable to a mechanic’s lien, that the party with whom the contrae! is made shall have some interest in the land upon which the building is to be erected or repaired, etc. This interest may be a fee simple, an estate for life, or it may be any estate less than a fee.</p> <p>4. Same—not for labor, etc., on property of a third party. If a mechanic performs labor upon a building in the temporary use of the party employing him, but which belongs to a third party, tlie statute gives him no lien.</p> <p>5. Same—statute relating to prior imeumbranc.es. The statute providing, where the land is incumbered by mortgage or otherwise at the time of making the contract, the owner’s equity of redemption may be sold, has no application where the equity of redemption is gone by sale under a deed of trust.</p> <p>6. Same—apportioning proceeds of sale as between lienholder and prior incumbrancer. Where the premises against which a’mechanic’s lien is decreed are subject to a prior incumbrance, the decree should ascertain what proportion of the proceeds of the sale shall be paid to the respective parties in interest. A decree of sale without this is erroneous.</p>

Joseph E. Gary, Judge, presiding. This tv as a petition by Cornelia Kussell against William P. Kerr, Charles B. Phillips, John Phillips, Charles H. Atkins and the South Park Commissioners, to recover dower in the south-west quarter and the south-east fractional quarter of section 13, township 38 north, range 14 east, in Cook county. The petitioner married John B. F. Kussell January 31, 1835, and cohabited with him until his death, on January 3, 1861.